*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 17 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________ BANT BRYAN BAIRD, Petitioner-Appellant,
v. RONALD WARD, Respondent-Appellee. No. 97-5229 (N.D. Okla.) (D.Ct. No. 97-CV-107-H)

__________________________ ORDER AND JUDGMENT *

__________________________ Before SEYMOUR, BRORBY, and BRISCOE , Circuit Judges.

__________________________ After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.
Mr. Bant Bryan Baird appeals the district court’s o rder dismissing his 281 In violation of the Fourteenth Amendment of the United States Constitution.

2For purposes of this judgment, we refer to the three disciplinary hearings as the McClary hearing for the battery offense on November 1, 1995, the McCloud hearing for the battery offense on November 9, 1995, and the Phillips hearing for battery offense that also occurred on November 9, 1995. The names of the hearings correspond to last names of the correction officers who are the victims of Mr. Baird’s battery offenses.
-2- U.S.C. § 2254 petition for failure to exhaust state remedies. Based on our conclusion Mr. Baird failed to exhaust the state re medy of writ of mandamus available to him, we affirm.

Mr. Baird is an inmate of the Oklahoma State Penite ntiary and a pro se litigant. This appeal arises out of his civil righ ts complaint brought under 42 U.S.C. § 1983 against numerous Oklahoma state priso n employees and officials. In his complaint, he alleged the defendants deprive d him of federal constitutional due process 1 in three disciplinary proceedings 2 that resulted in the loss of his good time credits, and required disciplinary segregation . Mr. Baird claimed 1) the defendants lied during their testimony and filed fa lse accusations; 2) the defendants refused to call certain witnesses that M r. Baird requested to testify in his defense; 3) the disciplinary chairperson in the Phillips hearing was biased and failed to make a written statement as to why he rel ied on Mr. Phillips’ testimony over other witnesses’ testimony; and 4) the evidenc e was insufficient to support3 A request for restoration of lost good time credits is a challenge to the length of

confinement. See Preiser v. Rodriguez , 411 U.S. 475, 487-88 (1973). Habeas corpus is the proper remedy for challenging a prisoner’s length of confinement. Id.
-3- the convictions. As relief, he sought to have his misconduct convictions expunged and his good time credits restored. He di d not pursue any of these claims in state court before he filed his federal c omplaint.
The district court construed the action as a petiti on for habeas corpus under 28 U.S.C. § 2254 because Mr. Baird effectively chal lenged the length of his confinement. 3 The defendants moved to dismiss the petition for failure to exhaust state remedies. The matter was referred to a magis trate who recommended the petition be denied for failure to exhaust state rem edies. The district court adopted the magistrate’s report and recommendation, and dis missed the petition. Mr. Baird appeals.
Mr. Baird asserts the district court erroneously di smissed his § 2254 petition for failure to exhaust state remedies beca use no adequate state remedy was available to him when he filed his petition. H e also claims the district court erroneously concluded he can now file a petition fo r writ of habeas corpus in Oklahoma because he will be entitled to immediate r elease. We review the4The petitioner may then amend his habeas petition deleting unexhausted claims,

or he may wait until all claims have been exhausted in state courts. See Rose v. Lundy , 455 U.S. 509, 520 (1982). -4- district court’s legal conclusions de novo and factual findings for clear error in dismissing a habeas petition. Davis v. Executive Dir. of Dep’t of Corrections , 100 F.3d 750, 756 (10th Cir. 1996), cert. denied, 117 S. Ct. 1703 (1997).
Under 28 U.S.C. § 2254(b)(1), an applicant for a pe tition of habeas corpus must exhaust state remedies before a federal court can grant an application for a writ of habeas corpus. This exhaustion doctrine re quires the state prisoner to present his federal constitutional claims to the hi ghest state courts prior to raising his claims in a federal habeas corpus petition. Hernandez v. Starbuck, 69 F.3d 1089, 1092 (10th Cir. 1995), cert. denied, 517 U.S. 1223 (1996). The exhaustion requirement exists as a matter of comity to give st ates the initial opportunity to address and correct alleged violations of federal l aw. Id. When a petition contains both exhausted and unexhausted claims, we must dismiss the petition in its entirety. 4 Rose v. Lundy , 455 U.S. 509, 522 (1982); Jones v. Hess , 681 F.2d 688, 695 (10th Cir. 1982).
The district court dismissed Mr. Baird’s petition b ecause he failed to pursue any remedies for his claims in Oklahoma courts. In particular, the court5The Oklahoma remedy of writ of habeas corpus was not available to him at the

time he filed his federal petition because he was not entitled to immediate release if his requested relief was granted, as required by Oklahoma law. See Waldon v. Evans , 861 P.2d 311, 313 (Okla. Crim. App. 1993); Okla. Stat. tit. 22, ch. 18, App. Rule 10.6(C).
-5- found the Oklahoma remedy of writ of mandamus was a vailable to Mr. Baird when he filed his § 2254 petition. 5 Oklahoma’s writ of mandamus remedy is available to correct violations of a prisoner’s min imum due process rights. See Waldon, 861 P.2d at 313; Canady v. Reynolds , 880 P.2d 391, 397 (Okla. Crim. App. 1994). Minimum due process in prison discipli nary proceedings requires, inter alia , the inmate’s right to present witnesses in his de fense if not unduly hazardous to institutional or correctional goals, a nd a written statement by the factfinder as to the evidence relied on and the rea sons for the disciplinary action. Wolff v. McDonnell , 418 U.S. 539, 563-64, 566 (1974); Waldon , 861 P.2d at 313. These are precisely the type of claims that Mr. Bai rd made in his petition. For example, Mr. Baird claimed the disciplinary chairpe rson in the Phillips hearing failed to make a written statement as to why he rel ied on Mr. Phillips’ version of facts over other witnesses’ testimony, and the defe ndants refused to call certain witnesses that Mr. Baird asked to testify in his de fense. Although the Oklahoma mandamus remedy is not available to claims involvin g the respondent’s refusal to perform a legal duty that is discretionary, Okla. S tat. tit. 22, ch. 18, App., Rule 10.6(B), the written statement requirement for mini mum due process is not-6-

discretionary. See Wolff , 418 U.S. at 564. Therefore, because Mr. Baird ca n exhaust at least one of his claims in Oklahoma courts, we must dismiss his petition. See Rose , 455 U.S. at 522.

Mr. Baird contends the mandamus action is unavailab le because the defendants’ decision to revoke good time credits is discretionary. Mr. Baird’s contention would be correct if he attacked solely t he merits of the decision revoking his good time credits. However, he assert s he was denied procedural due process during his disciplinary proceedings, no t that the defendants erred in calculating or revoking the credits. See, e.g., Waldon , 861 P.2d at 313 (noting the writ of mandamus is for due process review only, no t on the merits of the disciplinary decision); Wallace v. Cody , 951 F.2d 1170, 1172 (10th Cir. 1991) (ruling petitioner who alleged his good time credit s were incorrectly calculated did not have an adequate remedy under state law bec ause the issue was discretionary). Hence, a petition for a writ of ma ndamus is appropriate to address Mr. Baird’s due process claims.

Mr. Baird also claims the district court erred in s tating he can file a petition for a writ of habeas corpus in state court because he is now eligible for immediate release if his request for relief is granted. We d o not address this issue because-7-

we dismiss this petition on the grounds he did not exhaust the mandamus remedy. As Mr. Baird is now entitled to immediate release i f his relief is granted, and therefore eligible for the state habeas corpus reme dy, Mr. Baird will need to exhaust this remedy prior to filing a new federal p etition.
Accordingly, the judgment of the district court is AFFIRMED . Mr. Baird’s petition is DISMISSED without prejudice for failure to exhaust state remedies.
Entered by the Court: WADE BRORBY United States Circuit Judge